767.26 Annotation
Military disability payments may be considered in assessing ability to pay maintenance. Weberg v. Weberg,
158 Wis. 2d 540,
463 N.W.2d 382 (Ct. App. 1990).
767.26 Annotation
The trial court's use of a computer program to analyze financial evidence was not error. Bisone v. Bisone,
165 Wis. 2d 114,
477 N.W.2d 59 (Ct. App. 1991).
767.26 Annotation
An award may be based on a percentage of the payer's income in "unusual circumstances." Unpredictable future income warrants a percentage award. Hefty v. Hefty,
172 Wis. 2d 124,
493 N.W.2d 33 (1992).
767.26 Annotation
Maintenance furthers two objectives: 1) to support the recipient spouse in accordance with the needs and earning capacities of the parties; and 2) to ensure a fair and equitable financial agreement between the parties. In the interest of fairness, maintenance may exceed the recipient's budget. Hefty v. Hefty,
172 Wis. 2d 124,
493 N.W.2d 33 (1992).
767.26 Annotation
Maintenance is measured by the parties' lifestyle immediately before the divorce and that they could anticipate enjoying if they were to stay married. The award may take into account income increases the parties could reasonably anticipate. Hefty v. Hefty,
172 Wis. 2d 124,
493 N.W.2d 33 (1992).
767.26 Annotation
A maintenance award must account for the recipient's earning capacity and ability to be self-supporting at a level comparable to that during marriage. It is unfair to require one spouse to continue income production levels to maintain the standard of living of the other who chooses a decrease in production. Forester v. Forester,
174 Wis. 2d 78,
497 N.W.2d 78 (Ct. App. 1993).
767.26 Annotation
Consideration of one spouse's solicitation to have the other murdered in denying maintenance did not violate the statutory scheme and was not an improper consideration of "marital misconduct." Brabec v. Brabec,
181 Wis. 2d 270,
510 N.W.2d 762 (1993).
767.26 Annotation
A maintenance award based on equalization of income is not ``self-evidently fair'' and does not meet the statutory objectives of support and fairness. Olson v. Olson,
186 Wis. 2d 287,
520 N.W.2d 284 (Ct. App. 1994).
767.26 Annotation
An otherwise short-term marriage should not be considered a long-term marriage because there are children. Luciani v. Montemurro-Luciani,
191 Wis. 2d 67,
528 N.W.2d 477 (Ct. App. 1995).
767.26 Annotation
One spouse's contribution of child-rearing services and family support while the other spouse completed an education program was not sufficient grounds for awarding compensatory maintenance. Luciani v. Montemurro-Luciani,
191 Wis. 2d 67,
528 N.W.2d 477 (Ct. App. 1995).
767.26 Annotation
Leaving maintenance open due to potential future health problems of one spouse without expert testimony was proper, but failure to limit the order accordingly was improper. Grace v. Grace,
195 Wis. 2d 153,
536 N.W.2d 109 (Ct. App. 1995),
94-2653.
767.26 Annotation
Post-divorce increases in a pension fund valued in a divorce should be treated as an income stream available for maintenance. Olski v. Olski,
197 Wis. 2d 237,
540 N.W.2d 412 (1995),
93-3332.
767.26 Annotation
A court may consider earning capacity rather than actual earnings in determining child support and maintenance if it find's a spouse's job choice voluntary and unreasonable. Sellers v. Sellers,
201 Wis. 2d 578,
549 N.W.2d 481 (Ct. App. 1996),
95-2730.
767.26 Annotation
When parties have been married to each other more than once, a trial court can look at the total years of marriage when determining maintenance. The trial court is not bound by the terms of maintenance in the first divorce and may look to current conditions in setting maintenance. Wolski v. Wolski,
210 Wis. 2d 184,
565 N.W.2d 196 (Ct. App. 1997).
767.26 Annotation
A stipulation incorporated into a divorce judgment is in the nature of a contract. That a stipulation appears imprudent is not grounds for construction of an unambiguous agreement. Rosplock v. Rosplock,
217 Wis. 2d 22,
577 N.W.2d 32 (Ct. App. 1998).
767.26 Annotation
The purpose of maintenance is, at least in part, to put the recipient in a solid financial position that allows the recipient to become self-supporting by the end of the maintenance period. That the recipient becomes employed and makes productive investments of property division proceeds and maintenance payments is not a substantial change in circumstances but an expected result of receiving maintenance. Rosplock v. Rosplock,
217 Wis. 2d 22,
577 N.W.2d 32 (Ct. App. 1998).
767.26 Annotation
The trial court's exclusion of pension payments when considering income available to a maintenance recipient was correct when the pension had been awarded to the recipient as part of the property division and had no value outside of the payments made from it. Seidlitz v. Seidlitz,
217 Wis. 2d 82,
576 N.W.2d 585 (Ct. App. 1998).
767.26 Annotation
The "fairness objective" of equalizing total income does not apply in a postdivorce situation. Modification of maintenance has nothing to do with contributions, economic or noneconomic, made during the marriage. Johnson v. Johnson,
217 Wis. 2d 124,
576 N.W.2d 585 (Ct. App. 1998).
767.26 Annotation
When a reviewing court finds that a trial court erroneously exercised its discretion in awarding maintenance, the case should be remanded for the trial court to properly exercise its discretion. It was an abuse of discretion for a trial court to assume that a spouse is legally entitled to maintenance. King v. King,
224 Wis. 2d 235,
590 N.W.2d 480 (1999).
767.26 Annotation
Equal income division is a reasonable starting point in determining maintenance, but the goal is the standard of living enjoyed during the marriage, not 50% of the total predivorce earnings. Maintenance may surpass 50% of the couple's predivorce income, but the payee is not entitled to live a richer lifestyle than that enjoyed during the marriage. Johnson v. Johnson,
225 Wis. 2d 513,
593 N.W.2d 827 (Ct. App. 1999).
767.26 Annotation
Maintenance is not intended to provide a permanent annuity. Generally limited-term maintenance provides funds for training intended to enable the recipient to be self-supporting by the end of the maintenance period, and may also be used be to limit the responsibility of the payer to a certain time and to avoid future litigation. Absent a substantial change of circumstances, the parties may rightfully expect no change. The law of change of circumstances should not require a paying spouse to finance unwise financial decisions of the recipient. Murray v. Murray,
231 Wis. 2d 71,
604 N.W.2d 912 (Ct. App. 1999).
767.26 Annotation
Under sub. (9), the contribution by one party to the other's eduction is not limited to contributions that arose only during the marital period. The court may freely consider the total contributions. Meyer v. Meyer, 2000 WI 132,
239 Wis. 2d 731,
620 N.W.2d 382.
767.26 Annotation
It was not error for the trial court to consider under sub. (10) evidence of the parties having lived "separate lives" for much of their marriage. By not equalizing their incomes, the court in effect implemented what the parties had already agreed to in practice. Schmitt v. Schmitt, 2001 WI App 78,
242 Wis. 2d 565,
624 N.W.2d 14.
767.26 Annotation
When a pension is divided by a qualified domestic relations order, and no value is assigned to either spouse's interest to be offset by other property awarded in the property division, a court is not prohibited by double-counting rules from considering pension distributions when determining maintenance. Wattstaedt v. Wattstaedt, 2001 WI App 94,
242 Wis. 2d 709,
625 N.W.2d 900.
767.26 Annotation
A court's authority to order maintenance includes authority to impose obligations on the payee to ensure compliance with the payment order if those obligations are reasonably necessary to effect compliance with the payment order. Finley v. Finley, 2002 WI App 144,
256 Wis. 2d 508,
648 N.W.2d 536.
767.26 Annotation
Sections 767.25 (6) and 767.261 regarding a fixed amount of interest on child support do not limit the trial court's authority to consider imposing interest on unpaid maintenance. A trial court has discretionary authority under s. 767.01 (1) to impose interest on maintenance arrearages. If the court decides to impose interest, it is under the trial court's discretion to determine the amount to impose. Cashin v. Cashin, 2004 WI App 92, ___ Wis. 2d ___, ___ N.W.2d ___,
03-1010.
767.26 Annotation
The federal tax consequences of divorce. Meldman, Ryan, 57 MLR 229.
767.26 Annotation
No-fault divorce: Tax consequences of support, maintenance and property settlement. Case, 1977 WBB 11.
767.26 Annotation
See also notes to s. 767.32 for decisions regarding postjudgment modifications.
767.261
767.261
Family support. The court may make a financial order designated "family support" as a substitute for child support orders under
s. 767.25 and maintenance payment orders under
s. 767.26. A party ordered to pay family support under this section shall pay simple interest at the rate of 1% per month on any amount in arrears that is equal to or greater than the amount of child support due in one month. If the party no longer has a current obligation to pay child support, interest at the rate of 1% per month shall accrue on the total amount of child support in arrears, if any. Interest under this section is in lieu of interest computed under
s. 807.01 (4),
814.04 (4) or
815.05 (8) and is paid to the department or its designee under
s. 767.29. Except as provided in
s. 767.29 (1m), the department or its designee, whichever is appropriate, shall apply all payments received for family support as follows:
767.261(1)
(1) First, to payment of family support due within the calendar month during which the payment is received.
767.261(2)
(2) Second, to payment of unpaid family support due before the payment is received.
767.261(3)
(3) Third, to payment of interest accruing on unpaid family support.
767.261 Annotation
This section does not limit the authority a trial court would otherwise have to consider imposing interest on unpaid maintenance arrears. Cashin v. Cashin, 2004 WI App 92, ___ Wis. 2d ___, ___ N.W.2d ___,
03-1010.
767.262
767.262
Award of attorney fees. 767.262(1)
(1) The court, after considering the financial resources of both parties, may do the following:
767.262(1)(a)
(a) Order either party to pay a reasonable amount for the cost to the other party of maintaining or responding to an action affecting the family and for attorney fees to either party.
767.262(1)(b)
(b) If one party receives services under
s. 49.22 or services provided by the state or county as a result of an assignment of income under
s. 49.19, order the other party to pay any fee chargeable under
s. 49.22 (6) or the cost of services rendered by the state or county under
s. 49.19.
767.262(2)
(2) Any amount ordered under
sub. (1) may include sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment.
767.262(3)
(3) The court may order that the amount be paid directly to the attorney or to the state or the county providing services under
s. 49.22 or
49.19, who may enforce the order in its name.
767.262(4)(a)(a) Except as provided in
par. (b), no court may order payment of costs under this section by the state or any county which may be a party to the action.
767.262(4)(b)
(b) The court may order payment of costs under this section by the department or its designee, whichever is appropriate, in an action in which the court finds that the record of payments and arrearages kept by the department or its designee is substantially incorrect and that the department or its designee has failed to correct the record within 30 days after having received information that the court determines is sufficient for making the correction.
767.262 Annotation
An allowance for the wife's attorney's fees was not excessive when it was obvious that the court reasonably believed that a considerable portion of the attorney fees were attributable to the husband who, represented by 4 successive attorneys, caused a needlessly protracted trial, made numerous defense motions, and prosecuted a meritless appeal. Martin v. Martin,
46 Wis. 2d 218,
174 N.W.2d 468 (1970).
767.262 Annotation
An allowance of $1,000 attorneys fees on appeal, after the award of a generous property settlement, constituted a penalty for appealing. Molloy v. Molloy,
46 Wis. 2d 682,
176 N.W.2d 292 (1970).
767.262 Annotation
Attorney fees on appeal depend on need, ability to pay, and whether there is a reasonable ground for the appeal. Klipstein v. Klipstein,
47 Wis. 2d 314,
177 N.W.2d 57 (1970).
767.262 Annotation
An order for attorney fees is enforceable by contempt. The court cannot enter a judgment in favor of the attorneys directly. Before a contempt order is issued, the defendant must have notice of an application by the spouse to whom the fees are payable. O'Connor v. O'Connor,
48 Wis. 2d 535,
180 N.W.2d 735 (1970).
767.262 Annotation
Denial of the wife's motion for her husband to contribute to attorney fees to prosecute the wife's appeal was an abuse of discretion when the issues in the case were vigorously contested and in no way frivolous. Markham v. Markham,
65 Wis. 2d 735,
223 N.W.2d 616 (1974).
767.262 Annotation
A circuit court does not have subject matter jurisdiction in a divorce action to determine attorney fees between an attorney and client who the attorney continues to represent in the divorce action. Stasey v. Stasey,
168 Wis. 2d 37,
483 N.W.2d 221 (1992).
767.262 Annotation
Nonmarital assets may be considered in determining whether to order one party to contribute to the other's fees. Doerr v. Doerr,
189 Wis. 2d 112,
525 N.W.2d 745 (Ct. App. 1994).
767.263
767.263
Notice of change of employer, change of address and change in ability to pay; other information. 767.263(1)(1) Each order for child support, family support, or maintenance payments shall include an order that the payer and payee notify the county child support agency under
s. 59.53 (5) of any change of address within 10 business days of such change. Each order for child support, family support, or maintenance payments shall also include an order that the payer notify the county child support agency under
s. 59.53 (5) and the payee, within 10 business days, of any change of employer and of any substantial change in the amount of his or her income, including receipt of bonus compensation, such that his or her ability to pay child support, family support, or maintenance is affected. The order shall also include a statement that clarifies that notification of any substantial change in the amount of the payer's income will not result in a change of the order unless a revision of the order under
s. 767.32 or an annual adjustment of the child or family support amount under
s. 767.33 is sought.
767.263(2)
(2) When an order is entered under
sub. (1), each party shall provide to the county child support agency under
s. 59.53 (5) his or her social security number, residential and mailing addresses, telephone number, operator's license number and the name, address and telephone number of his or her employer. A party shall advise the county child support agency under
s. 59.53 (5) of any change in the information provided under this subsection within 10 business days after the change.
767.265
767.265
Income withholding. 767.265(1)(1) Each order for child support under this chapter, for maintenance payments under
s. 767.23 or
767.26, for family support under this chapter, for costs ordered under
s. 767.51 (3) or
767.62 (4), for support by a spouse under
s. 767.02 (1) (f), or for maintenance payments under
s. 767.02 (1) (g), each order for or obligation to pay the annual receiving and disbursing fee under
s. 767.29 (1) (d), each order for a revision in a judgment or order with respect to child support, maintenance, or family support payments under
s. 767.32, each stipulation approved by the court or a circuit court commissioner for child support under this chapter, and each order for child or spousal support entered under
s. 948.22 (7) constitutes an assignment of all commissions, earnings, salaries, wages, pension benefits, benefits under
ch. 102 or
108, lottery prizes that are payable in installments, and other money due or to be due in the future to the department or its designee. The assignment shall be for an amount sufficient to ensure payment under the order, obligation, or stipulation and to pay any arrearages due at a periodic rate not to exceed 50% of the amount of support due under the order, obligation, or stipulation so long as the addition of the amount toward arrearages does not leave the party at an income below the poverty line established under
42 USC 9902 (2).
767.265(1m)
(1m) If a party's current obligation to pay maintenance, child support, spousal support, or family support terminates but the party has an arrearage in the payment of one or more of those payments or in the payment of the annual receiving and disbursing fee, any assignment under
sub. (1) shall continue in effect, in an amount up to the amount of the assignment before the party's current obligation terminated, until the arrearage is paid in full.
767.265(2h)
(2h) If a court-ordered assignment, including the assignment specified under
sub. (1) for the payment of any arrearages due, does not require immediately effective withholding and a payer fails to make a required maintenance, child support, spousal support, family support or annual receiving and disbursing fee payment within 10 days after its due date, within 20 days after the payment's due date the court, circuit court commissioner or county child support agency under
s. 59.53 (5) shall cause the assignment to go into effect by providing notice of the assignment in the manner provided under
sub. (2r) and shall send a notice by regular mail to the last-known address of the payer. The notice sent to the payer shall inform the payer that an assignment is in effect and that the payer may, within a 10-day period, by motion request a hearing on the issue of whether the assignment should remain in effect. The court or circuit court commissioner shall hold a hearing requested under this subsection within 10 working days after the date of the request. If at the hearing the payer establishes that the assignment is not proper because of a mistake of fact, the court or circuit court commissioner may direct that the assignment be withdrawn. Either party may, within 15 working days after the date of a decision by a circuit court commissioner under this subsection, seek review of the decision by the court with jurisdiction over the action.
767.265(2m)(a)1.1. An obligation to pay unpaid fees under
s. 767.29 (1) (dm) 1m. constitutes an assignment of all commissions, earnings, salaries, wages, pension benefits, benefits under
ch. 102 or
108, lottery prizes that are payable in installments and other money due or to be due in the future to the department or its designee.
767.265(2m)(a)2.
2. An obligation to pay unpaid fees under
s. 767.29 (1) (dm) 2m. constitutes an assignment of all commissions, earnings, salaries, wages, pension benefits, benefits under
ch. 102 or
108, lottery prizes that are payable in installments and other money due or to be due in the future to the clerk of court to whom the fees are owed, or to his or her successor.
767.265(2m)(b)
(b) The county child support agency under
s. 59.53 (5) may cause an assignment under
par. (a) to go into effect by providing notice of the assignment in the manner provided under
sub. (2r) and sending a notice by regular mail to the last-known address of the payer. The notice sent to the payer shall inform the payer that an assignment is in effect and that the payer may, within a 10-day period, by motion request a hearing on the issue of whether the assignment should remain in effect. The court or circuit court commissioner shall hold a hearing requested under this paragraph within 10 working days after the date of the request. If at the hearing the payer establishes that the assignment is not proper because of a mistake of fact, the court or circuit court commissioner may direct that the assignment be withdrawn. The payer or the county child support agency may, within 15 working days after the date of a decision by a circuit court commissioner under this paragraph, seek review of the decision by the court with jurisdiction over the action.
767.265(2r)
(2r) Upon entry of each order for child support, maintenance, family support, support by a spouse or the annual receiving and disbursing fee, and upon approval of each stipulation for child support, unless the court finds that income withholding is likely to cause the payer irreparable harm or unless
s. 767.267 applies, the court, circuit court commissioner or county child support agency under
s. 59.53 (5) shall provide notice of the assignment by regular mail or by facsimile machine, as defined in
s. 134.72 (1) (a), or other electronic means to the last-known address of the person from whom the payer receives or will receive money. The notice shall provide that the amount withheld may not exceed the maximum amount that is subject to garnishment under
15 USC 1673 (b) (2). If the department or its designee, whichever is appropriate, does not receive the money from the person notified, the court, circuit court commissioner or county child support agency under
s. 59.53 (5) shall provide notice of the assignment to any other person from whom the payer receives or will receive money. Notice under this subsection may be a notice of the court, a copy of the executed assignment or a copy of that part of the court order directing payment.
767.265(3h)
(3h) A person who receives notice of assignment under this section or
s. 767.23 (1) (L) or
767.25 (4m) (c) or similar laws of another state shall withhold the amount specified in the notice from any money that person pays to the payer later than one week after receipt of notice of assignment. Within 5 days after the day the person pays money to the payer, the person shall send the amount withheld to the department or its designee, whichever is appropriate, or, in the case of an amount ordered withheld for health care expenses, to the appropriate health care insurer, provider or plan. With each payment sent to the department or its designee, the person from whom the payer receives money shall report to the department or its designee the payer's gross income or other gross amount from which the payment was withheld. Except as provided in
sub. (3m), for each payment sent to the department or its designee, the person from whom the payer receives money shall receive an amount equal to the person's necessary disbursements, not to exceed $3, which shall be deducted from the money to be paid to the payer.
Section 241.09 does not apply to assignments under this section.
767.265(3m)
(3m) Benefits under
ch. 108 may be assigned and withheld only in the manner provided in
s. 108.13 (4). Any order to withhold benefits under
ch. 108 shall be for a fixed sum unless the court-ordered obligation on which the withholding order is based is expressed in the court order as a percentage of the payer's income, in which case an order to withhold benefits under
ch. 108 shall be for a percentage of benefits payable. When money is to be withheld from these benefits, no fee may be deducted from the amount withheld and no fine may be levied for failure to withhold the money.
767.265(4)
(4) A withholding assignment or order under this section or
s. 767.23 (1) (L) or
767.25 (4m) (c) has priority over any other assignment, garnishment or similar legal process under state law.
767.265(6)(a)(a) Except as provided in
sub. (3m), if after receipt of notice of assignment the person from whom the payer receives money fails to withhold the money or send the money to the department or its designee or the appropriate health care insurer, provider or plan as provided in this section or
s. 767.23 (1) (L) or
767.25 (4m) (c), the person may be proceeded against under the principal action under
ch. 785 for contempt of court or may be proceeded against under
ch. 778 and be required to forfeit not less than $50 nor more than an amount, if the amount exceeds $50, that is equal to 1% of the amount not withheld or sent.
767.265(6)(b)
(b) If an employer who receives an assignment under this section or
s. 767.23 (1) (L) or
767.25 (4m) (c) fails to notify the department or its designee, whichever is appropriate, within 10 days after an employee is terminated or otherwise temporarily or permanently leaves employment, the employer may be proceeded against under the principal action under
ch. 785 for contempt of court.
767.265(6)(c)
(c) No employer may use an assignment under this section or
s. 767.23 (1) (L) or
767.25 (4m) (c) as a basis for the denial of employment to a person, the discharge of an employee or any disciplinary action against an employee. An employer who denies employment or discharges or disciplines an employee in violation of this paragraph may be fined not more than $500 and may be required to make full restitution to the aggrieved person, including reinstatement and back pay. Except as provided in this paragraph, restitution shall be in accordance with
s. 973.20. An aggrieved person may apply to the district attorney or to the department for enforcement of this paragraph.
767.265(6)(d)
(d) Compliance by the person from whom the payer receives money with the order operates as a discharge of the person's liability to the payer as to that portion of the payer's commission, earnings, salaries, wages, benefits or other money so affected.
767.265(6m)
(6m) A county child support agency under
s. 59.53 (5) may convert a support amount in an order for income withholding under this section that is expressed as a percentage of income to the equivalent sum certain amount for purposes of enforcing a child support order in another state under
subch. V or
VI of ch. 769. Nothing in this subsection authorizes a change, or may be construed to change, the support obligation specified in the underlying child support order.
767.265(7)
(7) A person who receives more than one notice of assignment under
sub. (3h) may send all money withheld to the department or its designee, whichever is appropriate, in a combined payment, accompanied by any information the department or its designee requires.
767.265(7m)(b)
(b) If after an assignment is in effect the payer's employer changes its payroll period, or the payer changes employers and the new employer's payroll period is different from the former employer's payroll period, the clerk of court may, unless otherwise ordered by a judge, amend the withholding assignment or order so that all of the following apply:
767.265(7m)(b)1.
1. The withholding frequency corresponds to the new payroll period.
767.265(7m)(b)2.
2. The amounts to be withheld reflect the adjustment to the withholding frequency.
767.265(7m)(c)
(c) The clerk of court shall provide notice of the amended withholding assignment or order by regular mail to the payer's employer and to the payer.
767.265(8)
(8) In this section, "employer" includes the state and its political subdivisions.
767.265 History
History: 1971 c. 110;
1975 c. 94 s.
91 (3);
1975 c. 199;
1977 c. 105;
1979 c. 32 ss.
50,
92 (4);
1979 c. 196,
221; Stats. 1979 s. 767.265;
1981 c. 20,
186;
1983 a. 27,
384;
1985 a. 29;
1987 a. 38 s.
136;
1987 a. 332 s.
64;
1987 a. 398,
403;
1989 a. 31,
56,
212,
336;
1991 a. 287;
1993 a. 16,
326,
389,
481;
1995 a. 27 s.
9130 (4);
1995 a. 279,
404;
1997 a. 27,
191;
1999 a. 9;
2001 a. 16,
61,
105.
767.265 Annotation
The maximum amount subject to assignment to collect an arrearage is 50% of the support currently due. A 25% wage assignment for current support limits an assignment for arrearages to an additional 12.5% of wages. Schnetzer v. Schnetzer,
174 Wis. 2d 458,
497 N.W.2d 772 (Ct. App. 1993).
767.265 Annotation
The assignment under sub. (1) does not require earnings to be withheld and therefore is not a garnishment subject to federal restrictions. Carpenter v. Mumaw,
230 Wis. 2d 384,
602 N.W.2d 536 (Ct. App. 1999).
767.265 Annotation
Mandatory wage assignment provisions of this section are constitutional. 68 Atty. Gen. 106.
767.266
767.266
Effect on transfers at death. 767.266(1)
(1)
Revocation of death provisions in marital property agreement. Unless the judgment provides otherwise, a judgment of annulment, divorce or legal separation revokes a provision in a marital property agreement under
s. 766.58 that provides for any of the following:
